D. Casey Flaherty – Law Departments and the Foundation of Law Firm Marketing Bullshit

The title of this article is misleading. The foundation of law firm marketing, and all marketing, is capitalism. All marketing is misleading. The entire article is confused because it makes vague references to things like improvement, efficiency, or whatever, without really explaining who benefits or in what way. Anyway, the parts about the “lawyer theory of value” are useful, as a specific illustration of the old saying “to a hammer every problem looks like a nail.” But that doesn’t really explain much. The labor leader Tony Mazzocchi once said that the construction trades would “pave over the Atlantic Ocean, if given the chance.” It is no different with lawyers and lawyering. A rather useful frame to apply to these questions is what Paul Kivel discussed in his article “Social Service or Social Change.” A better framework is public benefit, and a (materialist) distinction between public and private benefit. Laywers, as part of what Kivel terms the “managerial class”, tend to look like self-interested collaborators with society’s bad actors (the exploitative “power elite”). The Flaherty article at most sees the problem as one of degree, not of kind. But corporate benefit — as in increased profits for shareholders of a particular company — is a stupid metric, one that presupposes capitalism and an unfair social structure. Yet, it is also true that lawyers can do good. Take, for instance, something that Moshe Lewin discussed in The Soviet Century, about how the Khrushchev administration dismantled the Stalinist gulag system in the former USSR and unwound the brutal system of arbitrary arrest by the NKVD through…increased use of lawyering! This latter example (drawn from a different country and historical period) illustrates a public benefit. After all, confronting a institutions known for arbitrary persecutions leading to executions, torture and imprisonment in slave labor camps was fraught with potential peril and hardly a simple matter of self-aggrandizement. Flaherty stops well short of concern for public benefit, discussing only private concerns within the realm of corporate law — and, it should be mentioned, the private concerns of legal consultants like Flaherty. But if Flaherty did raise concerns about public benefit, it would probably mean eliminating corporations and corporate law departments entirely, eliminating the need for consultants like Flaherty. The cynicism of this article reflects what Peter Sloterdijkcalled “enlightened false consciousness”. Or, perhaps, this can be explained by Upton Sinclair, who long ago said it is hard to get someone to understand something when his salary depends on him not understanding it.